USA Freedom requires the NSA to stop collecting our telephone records. An open question when the law passed was what should happen to the mountain of records the NSA has already collected. Will the records be destroyed? Will the NSA keep them? Will it be able to keep using them?

Earlier this week, the NSA announced that it was going to move the stored records out of active use in November, with a three month period when its employees check them for "data integrity" reasons. It noted, however, that it would not be destroying the records until resolution of the various court cases where the government is under a court order to preserve evidence. Three of those cases are EFF's: Jewel v. NSA, First Unitarian Church of Los Angeles v. NSA and Smith v. Obama. The implication is that the privacy advocates are the reason that these records aren't being destroyed.

Not so.

We have offered to the NSA, in multiple court filings, to enter into a plan under which they can destroy many of the records (maybe not all, but certainly most of them). The NSA just needs to admit that our clients’ telephone records were included in the mass collection and for how long. Alternatively, they could state on the record that none of our clients' records were ever included in the NSA's telephone records collection, something that seems inconceivable (we do know what that word means) given that Jewel v. NSA is a class action on behalf of all telephone customers of AT&T.

The government has flatly refused and instead wants to have it both ways: the NSA continues claim that we don’t have proof that our clients' records were included, and so don’t have standing to sue, while at the same time seeking to destroy the very evidence that can most clearly prove it.

Here’s one place we mentioned it, but it was raised by us throughout a long fight about preservation in March-July, 2014, after we learned that the government was petitioning the secret FISA Court to destroy some of the telephone records:

Plaintiffs need the phone records and other material that they claim has been unlawfully collected preserved so that they can oppose the Government’s claim that Plaintiffs’ lack standing because they merely speculate that their information has been collected and, to a lesser extent, to prove the size of their monetary damages. This evidence preservation dispute can be avoided by a simple stipulation: an admission that Plaintiffs’ telephone records have been collected and for how long. Once the fact of collection and the relevant time periods are settled, the records themselves need not be preserved.

So we want the NSA to destroy the records and we've given them a clear path. The NSA just doesn’t want to take it.

What the NSA appears to want instead is to paint privacy advocates like EFF as the reason that hundreds of millions of telephone records aren’t being destroyed. But if the NSA would just admit that they did indeed collect the telephone records of these plaintiffs along with millions of other Americans, instead of still hiding behind legal game playing like their standing arguments, we could move forward with a reasonable destruction plan for these records.

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